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Leiden Journal of International Law (2012), 25, pp. 857–884
C Foundation of the Leiden Journal of International Law 2012
doi:10.1017/S0922156512000489
INTERNATIONAL LEGAL THEORY
The Extraterritoriality of the European
Convention on Human Rights: Why
Human Rights Depend on Jurisdiction
and What Jurisdiction Amounts to
SA M A N T H A B E S S O N ∗
Abstract
The extraterritoriality or extraterritorial application of international and European human
rights treaties refers to the recognition by those treaties’ states parties of the international
and European human rights of individuals or groups of individuals situated outside their
territory and, in a second stage, to the identification of their corresponding duties to those
individuals. Examples of extraterritoriality abound in international human rights practice,
and in particular in the European Court of Human Rights’ case law. Except for vague and
often misleading gestures to the universality of human rights, which allegedly requires their
extraterritorial application, however, many of the normative considerations underlying the
extraterritorial applicability of human rights have not been broached in the human rights law
literature. Nor, conversely, have human rights theorists, even among those who take the supply
side of human rights seriously, devoted much attention to the threshold criteria for the abstract
recognition of human rights and the trigger of the corresponding duties. To remedy some of
those shortcomings, this article endeavours to bring some normative human rights theorizing
to bear on the European Court of Human Rights’ recent practice on extraterritoriality. More
specifically, the article delves deeper into the notion of ‘jurisdiction’ qua threshold criterion
for the applicability of the European Convention on Human Rights both within and outside
its states parties’ territories; distinguishes it from related notions such as authority, coercion,
power, or control; and explains its normative consequences.
Key words
European Convention on Human Rights; extraterritorial application; human rights; jurisdiction; universality
∗
Professor of Public International Law and European Law, University of Fribourg and Fellow of the
Wissenschaftskolleg zu Berlin (2011–12) [[email protected]]. Many thanks are due to Susan
Karamanian, Harold Hongju Koh and Paul Schiff Berman, but also to Sir Nicolas Bratza, Jean-Paul Costa,
Lech Garlicki, Christopher McCrudden, Michael O’Boyle, Françoise Tulkens, Nina Vajic, Derek Walton, and
the other participants in the Joint United States Supreme Court and European Court of Human Rights
Conference Judicial Process and the Protection of Rights: The US Supreme Court and the European Court
of Human Rights at the George Washington Law School on 1 March 2012; to Armin von Bogdandy, Matthias Goldmann, Arthur Dyevre, Anja Seibert-Fohr, Nele Yang, and the other participants in the Max Planck
Institute Lecture Series in Heidelberg on 21 March 2012; to Anna Bettina Kaiser, Helmut Aust, Christian
Tomuschat, Nora Markard, and the other participants in the Law & Society Institute Seminar Series at the
Humboldt Universität zu Berlin on 15 May 2012. Special thanks also to Tancrède Scherf for his research
assistance, to Eleonor Kleber for her help with the editing and formatting of the article, to Pierre d’Argent for
our discussions on the topic and his helpful comments, and to an anonymous reviewer for useful remarks
and critiques.
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SA M A N T H A B E S S O N
. . . article 1 of the Convention cannot be interpreted so as to allow a State Party to perpetrate
violations of the Convention on the territory of another State, which it could not perpetrate on
its own territory.
ECtHR, Issa v. Turkey, Judgment of 16 November 2004, para. 71
. . . the United Kingdom (together with the United States) assumed in Iraq the exercise of some
of the public powers normally to be exercised by a sovereign government.
ECtHR, Al-Skeini v. United Kingdom, Judgment of 7 July 2011, para. 149
1. I NTRODUCTION
The extraterritoriality or extraterritorial application of international and European
human rights treaties refers to the recognition by those treaties’ states parties of the
international and European human rights of individuals or groups of individuals
situated outside their territory and, in a second stage, to the identification of their
corresponding duties to those individuals. Examples of extraterritoriality abound in
international human rights practice, and in particular in the recent case law of the
European Court of Human Rights (ECtHR or the Court): the European Convention
on Human Rights (ECHR) was said to apply to the Turkish occupation of Northern
Cyprus in Loizidou,1 to the United Kingdom’s prisons and operations in Iraq in
Al-Saadoon and Al-Skeini,2 to the French interdiction of a Cambodian vessel and
coercive law enforcement at sea in Medvedyev,3 or to the Italian Revenue Police and
Coastguard’s ships’ border control operations in the Mediterranean in Hirsi,4 albeit,
interestingly, not to NATO bombings over Belgrade in Banković.5
In reaction to those jurisprudential developments, there has been no shortage
of academic commentaries, mostly very critical of the cautious stance expressed
in the Court’s case law and its pragmatic development. However, except for vague
and often misleading gestures to the universality of human rights, which allegedly
requires their extraterritorial application,6 many of the normative considerations
underlying the extraterritorial applicability of human rights have not been broached
in the human rights law literature. Nor, conversely, have human rights theorists,
even among those who take the supply side of human rights seriously,7 devoted
much attention to the threshold criterion of jurisdiction for the abstract recognition
of human rights and the trigger of the corresponding human rights duties.8
1
2
3
4
5
6
7
8
Loizidou v. Turkey, Judgment of 18 December 1996, [1996] ECHR (Rep. 1996–VI).
Al-Saadoon v. United Kingdom, Judgment of 2 March 2010, [2010] ECHR (Appl. No. 61498/08); Al-Skeini v. United
Kingdom, Judgment of 7 July 2011, [2011] ECHR (Appl. No. 55721/07).
Medvedyev v. France, Judgment of 29 March 2010, [2010] ECHR (Appl. No. 3394/03).
Hirsi Jamaa and Others v. Italy, Judgment of 23 February 2012, [2012] ECHR (Appl. No. 27765/09).
Banković v. Belgium and Others, Decision of 12 December 2001, [2001] ECHR (Rep. 2001–XII).
See, e.g., M. Milanovic, Extraterritorial Application of Human Rights Treaties: Law, Principles and Policy (2011), at
55–7, 106; R. Lawson, ‘Really out of Sight? Issues of Jurisdiction and Control in Situations of Armed Conflict
under the ECHR’, in A. Buyse (ed.), Margins of Conflict: The ECHR and Transitions to and from Armed Conflict
(2011), 57 at 75.
See, e.g., H. Shue, Basic Rights: Subsistence, Affluence and US Foreign Policy (1996), at 166 ff.; J. Nickel, Making
Sense of Human Rights (2007), at 38 ff.; C.R. Beitz, The Idea of Human Rights (2009), at 109 ff.
See, however, S. Gardbaum, ‘Human Rights as International Constitutional Rights’, (2008) 19 EJIL 749, at
764–5.
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This is surprising as it is unclear why the universality of human rights (and human
rights-holders) ought to imply the universality of human rights duty-bearers vis-àvis any right-holder without reference to their political and legal relationship.9 Not
only is this a normatively unaccounted-for implication among those promoting
an extensive interpretation of the extraterritorial application of international and
European human rights law, but it contradicts the way in which international human
rights treaties only apply formally to every given state party’s institutions and not to
all other states at once, and not to other subjects of international law but to states, on
the one hand, and only vis-à-vis certain individuals situated in a specific relationship
to them and not to everyone, on the other. What some authors underestimate is the
meaning and the role of the threshold criterion for the application of human rights,
i.e., state jurisdiction qua relationship between a certain state party and certain
individuals. And when they consider it, they are too quick to assimilate it to some
kind of mere factual power or control test for some,10 or to a mere capability to
respect human rights requirements for others.11 Neglect for the notion and role of
jurisdiction explains in return why those authors are at pains to account for the
limited extraterritorial application of the ECHR, and of international human rights
law more generally, and why they situate themselves in constant opposition to
human rights treaty bodies’ and the ECtHR’s practice.12
To remedy some of those shortcomings, this article endeavours to bring some
normative human rights theorizing to bear on the ECtHR’s recent practice on
extraterritoriality. It hopes thereby to provide a different reading of the Court’s
case law and show that it has been wrongly depicted by some authors as fragmented
and even contradictory.13 More specifically, the article delves deeper into the notion
of ‘jurisdiction’ that is the threshold criterion for the applicability of the ECtHR both
within and outside its states parties’ territories; distinguishes it from related notions
such as sovereignty, authority, coercion, power, or control; and explains what its
normative consequences are.
9
10
11
12
13
See, e.g., Nickel, supra note 7, at 38 ff.; J. Tasioulas, ‘The Moral Reality of Human Rights’, in T. Pogge (ed.),
Freedom from Poverty as a Human Right: Who Owes What to the Very Poor? (2007), 75. Cf. O. O’Neill, ‘The Dark
Side of Human Rights’, (2005) 81 Int. Aff. 427.
See, e.g., Milanovic, supra note 6, at 8; Lawson, supra note 6, at 75; S. Cleveland, ‘Embedded International Law
and the Constitution Abroad’, (2010) 110 Columbia Law Review 231.
See, e.g., Al-Skeini, supra note 2, Concurring Opinion of Judge Bonello, paras. 11–12.
See, e.g., G. Neuman, ‘The Extraterritorial Constitution after Boumediene v. Bush’, (2009) 82 Southern California
Law Review 259, at 269–70, regarding explanations about restricting the territorial scope of constitutional
rights (presumably, however, there is more at stake here than a question of foreseeability of duties incurred
by the recognition of human rights with extraterritorial application); or Milanovic, supra note 6, at 219–22,
regarding the contrast between universality and effectiveness (presumably, however, a right cannot be said to
be universal if it cannot be effectively protected through corresponding duties). See also D. McGoldrick, ‘The
Extraterritorial Application of the International Covenant on Civil and Political Rights’, in F. Coomans and
M. Kamminga (eds.), Extraterritorial Application of Human Rights Treaties (2004), at 41. For the same opinion,
see M. O’Boyle, ‘The European Convention on Human Rights and Extraterritorial Jurisdiction: A Comment
on “Life after Banković”’, in Coomans and Kamminga, supra 125 at 136.
See for this critique: M. Milanovic, ‘Al-Skeini and Al-Jedda in Strasbourg’, (2012) 23(1) EJIL 121; Lawson, supra
note 6, at 63 ff. Of course, it is quite remarkable that the Court decided to overrule part of its Banković (supra
note 5) precedent in Al-Skeini (supra note 2), albeit without recognizing that it was doing so: for instance,
it has now abandoned the espace juridique européen requirement, but also the prohibition of ‘tailoring and
dividing’ human rights.
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Jurisdiction is a threshold criterion for the applicability of most international
and European human rights treaties: it conditions the applicability of those rights
and duties on political and legal circumstances where a certain relationship exists
between rights-holders and states parties.14 I would like to argue that jurisdiction
qua normative relationship between subjects and authorities actually captures the
core of what human rights are about qua normative relationships between rightholders and institutions as duty-bearers. It is no wonder, therefore, that the ECHR
has made the relationship of jurisdiction a pivotal notion to understanding who
the right-holders, but also the duty-bearers, of ECHR rights are.15 In effect, I would
like to show that the limited extraterritorial application of the ECHR no longer is
the problem some say it is, once we face some of the hard normative questions in
human rights theory, and endorse an account of human rights that ties them to the
exercise of political and legal authority. One may even venture as far as to say that
given those ties between human rights and political authority through jurisdiction,
it should come as no surprise that the ECtHR takes political concerns seriously when
deciding cases of extraterritorial application of the Convention.16
A final note on this article’s scope is in order. First of all, the focus on the ECHR and
not on other international human rights treaties or regimes may be explained by reference to the well-developed case law of the ECtHR on the issue,17 and by the Court’s
specifically supranational judicial take on the question.18 The proposed normative
understanding may then be applied mutatis mutandis to other international human rights regimes.19 Most international human rights treaties in force entail nonexclusively territorial jurisdiction clauses similar to the ECHR’s,20 although some
14
15
16
17
18
19
20
See also Lopez Burgos v. Uruguay, Communication No. 52/1979, Views of 29 July 1981, UN Doc.
CCPR/C/13/D/52/1979, paras. 12.2 and 12.3 on this very notion of ‘relationship between the individual
and the State’.
See also J. P. Costa, ‘Qui relève de la jurisdiction de quel(s) Etats au sens de l’article 1er de la Convention
européenne des droits de l’homme?’, in L. Condorelli (ed.), Libertés, justice, tolérance; Mélanges en hommage au
doyen Gérard Cohen-Jonathan (2004), 483 at 500, who regards jurisdiction as the cornerstone or pierre angulaire
of the Convention. See also O’Boyle, supra note 12, at 125.
See on the overpoliticized nature of the case law, however: Milanovic, supra note 6, at 4; R. Lawson, ‘Life after
Banković: On the Extraterritorial Application of the European Convention of Human Rights’, in Coomans
and Kamminga, supra note 12, 83 at 115–16; McGoldrick, supra note 12, at 71; Lawson, supra note 6, at 75. For
the same opinion, see O’Boyle, supra note 12, at 136.
For a detailed review, see, e.g., Lawson, supra note 6; Milanovic, supra note 6.
See also Milanovic, supra note 6, at 4.
For a similar argument, see Milanovic, supra note 6, at 4; O. De Schutter, ‘Globalization and Jurisdiction:
Lessons from the European Convention on Human Rights’, (2006) 6 Baltic Yearbook of International Law 183,
at 192.
On the extraterritoriality of international human rights law outside the ECHR, see, e.g., T. Meron, ‘Extraterritoriality of Human Rights Treaties’, (1995) 89 AJIL 78; Y. Shany and O. Ben-Naftali, ‘Living in Denial : The
Application of Human Rights in the Occupied Territories’, (2003–4) 37(1) Israel Law Review 17; R. Wilde,
‘Triggering State Obligations Extraterritorially: The Spatial Test in Certain Human Rights Treaties’, (2007)
40(2) Israel Law Review 503; R. Wilde, ‘Compliance with human rights norms extraterritorially: “human
rights imperialism”?’, in L. Boisson de Chazournes and M. Kohen (eds.), Le droit international et la quête de
sa mise en oeuvre. Liber Amicorum Vera Gowlland-Debbas (2010), at 319; M. Scheinin, ‘Extraterritorial Effect
of the International Covenant on Civil and Political Rights’, in Coomans and Kamminga, supra note 12 at
73; McGoldrick, supra note 12; M. Gondek, The Reach of Human Rights in a Globalising World: Extraterritorial
Application of Human Rights Treaties (2009); G. Goodwin-Gill, ‘The Extraterritorial Reach of Human Rights
Obligations: A Brief Perspective on the Link to Jurisdiction’, in L. Boisson de Chazournes and M. Kohen (eds.),
Le droit international et la quête de sa mise en oeuvre; Liber Amicorum Vera Gowlland-Debbas (2010), at 293; G.
Grisel, Application extraterritoriale du droit international des droits de l’homme (2010); Milanovic, supra note 6, at
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contain none at all, as is the case of the UN Covenant on Economic, Social and Cultural Rights.21 Second, the focus on international or regional human rights law, and not on domestic and comparative constitutional human
rights law, has to do with the specific function of international and European
human rights that are complementary to domestic constitutional or fundamental
rights and not comparable in their role. Even though they share the same
structure and content by and large, their complementary function becomes particularly evident, I will argue, in matters of personal scope of the protected
rights, both within and outside the state’s territory. This is why I concentrate
mostly on the ECtHR’s case law in the article, and only briefly explain now
and then why it may differ from a domestic constitutional court’s practice on
extraterritoriality.22
The article’s argument is three-pronged. The first section of the article pertains to
the notion of jurisdiction as a trigger for human rights protection in the ECHR and its delineations from related notions in international law (the ‘which concept of jurisdiction’ question) (2). The second section relates to the assessment of jurisdiction and in particular the assessment of its constitutive elements and types (the so-called ‘models of
jurisdiction’ question23 ) (3). The third section pertains to the normative consequences
of jurisdiction in terms of the types of rights and duties applicable (the ‘all-or-nothing
jurisdiction’ and ‘all-or-nothing rights and duties’ question) (4). Finally, a coda at the
end of the article identifies and briefly addresses some of the challenges remaining for the extraterritorial application of international and European human rights
law (5).
21
22
23
34–9 and 11 ff.; F. Hampson, ‘The Scope of the Extraterritorial Applicability of International Human Rights
Law’, in G. Gilbert, F. Hampson, and C. Sandoval (eds.), The Delivery of Human Rights: Essays in Honour of
Professor Sir Nigel Rodley (2011), at 157. See, e.g., Art. 2 International Covenant on Civil and Political Rights,
which states that ‘[e]ach State Party . . . undertakes to respect and to ensure to all individuals within its territory
and subject to its jurisdiction the rights recognized in the present Covenant’ (emphasis added).
Interestingly, there is still some uncertainty about the extraterritorial applicability of the UN
Covenant on Economic, Social and Cultural Rights that does not have a jurisdiction clause:
on this issue, see the essays in Coomans and Kamminga, supra note 12. See also Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion of 9
July 2004, [2004] ICJ Rep. 136, paras. 102–113; and the 2011 Maastricht Principles on the Extraterritorial Obligations of States in the area of ESC Rights (hereafter ‘ETO Principles’), available
online at www.icj.org/dwn/database/Maastricht%20ETO%20Principles%20-%20Final%20Version%2017.
10.2011.pdf, and especially Art. 9: ‘A State has obligations to respect, protect and fulfill economic, social
and cultural rights in any of the following: a) situations over which it exercises authority or effective control,
whether or not such control is exercised in accordance with international law; b) situations over which State acts or
omissions bring about foreseeable effects on the enjoyment of economic, social and cultural rights, whether
within or outside its territory; c) situations in which the State, acting separately or jointly, whether through
its executive, legislative or judicial branches, is in a position to exercise decisive influence or to take measures to realize economic, social and cultural rights extraterritorially, in accordance with international law’
(emphasis added).
Contrast, e.g., the ECtHR’s Al-Skeini, supra note 2, with the US Supreme Court’s Boumediene v. Bush, (2008) 128
S. Ct. 2229, or the ECtHR’s Hirsi, supra note 4, with the US Supreme Court’s Sale v. Haitian Centers Council,
(1993) 113 S. Ct. 2549. For a comparison of the evolutions of the two practices, see Cleveland, supra note 10.
See Milanovic, supra note 6, at 118 ff., for the term ‘jurisdiction model’.
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2. T HE NOTION OF JURISDICTION
To understand the notion of jurisdiction, it is important to start by understanding
how it functions as a threshold criterion (subsection 2.1), what its meaning should
be (subsection 2.2), how it should be distinguished from other, related notions
(subsection 2.3), and how its domestic and international law dimensions should be
carefully delineated (subsection 2.4).
2.1. Jurisdiction as threshold criterion
Pro memoria, the extraterritoriality, or extraterritorial application, of the ECHR refers
to the recognition (French for ‘securing’ in Article 1 ECHR) of ECHR rights by states
parties and the identification of the corresponding duties on their part to individuals
or groups of individuals situated outside their territory.24
The notion of extraterritoriality itself implies that the territorial application of
human rights is the principle, but that there can be exceptions.25 Human rights
ordinarily apply to subjects situated within the territorial boundaries of the state,
but there are circumstances in which they can and should also apply outside those
boundaries. It is important to note this reference to ‘can and should’ because the
correlation between human rights and duties implies that the application of human
rights not only is required in certain circumstances that need to be identified, but
that it also has to be possible before it can be required (by reference to the ‘ought
implies can’ principle).
To determine what the geographical scope of the ECHR amounts to and whether
it can and should extend beyond the territorial boundaries of any state party, the
only resort is to a non-geographical clause: Article 1 ECHR’s threshold criterion for
the application of the Convention.26 Article 1 ECHR reads as follows: ‘Obligation to
respect human rights. The High Contracting Parties shall secure to everyone within
their jurisdiction the rights and freedoms defined in Section I of this Convention’
(emphasis added).
The threshold or liminal criterion for the application of ECHR rights consists
in state jurisdiction. It is an abstract threshold for the recognition of human rights
in the first place. Without state jurisdiction over certain people, those people do
not have human rights against that state and that state has no human rights duties
24
25
26
See Al-Skeini, supra note 2, para. 130: ‘The exercise of jurisdiction is a necessary condition for a Contracting
State to be able to be held responsible for acts or omissions imputable to it which give rise to an allegation of
the infringement of rights and freedoms set forth in the Convention.’ See also Milanovic, supra note 6, at 7–9.
It is important therefore to clearly delineate the extraterritorial application of the ECHR from its so-called
‘boomerang effect’ (in French: effet ricochet) as exemplified in extradition cases (e.g., Soering v. United Kingdom,
Judgment of 7 July 1989, [1989] ECHR (Ser. A. 161); Chahal v. United Kingdom, Judgment of 15 November 1996,
[1996] ECHR (Rep. 1996-V); Al-Saadoon, supra note 2; Hirsi, supra note 4): in those decisions, what constituted
a violation of the ECHR on a given state party’s territory, and therefore under its jurisdiction, was the state
party’s decision that pertained to people situated on its territory, where its jurisdiction was presumed, but
that implied sending them away to another state, and outside the state party’s jurisdiction, where they would
suffer potential violations of their human rights. Of course, in practice, many cases discussed in this article
combine elements of extraterritoriality and boomerang effect: see, e.g., Al-Saadoon, supra note 2; and Hirsi,
supra note 4.
See Banković, supra note 5; Al-Skeini, supra note 2; and Hirsi, supra note 4.
See Al-Skeini, supra note 2, para. 130.
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towards those people. The relational nature of jurisdiction between a subject and the
authority needs to be stressed, as it corresponds to the relational nature of human
rights between a right-holder and a duty-bearer. Article 1 ECHR situates human rights
within a relationship of jurisdiction and makes them dependent on it: jurisdiction
both requires the recognition of human rights normatively (jurisdiction as normative trigger of human rights) and provides the conditions for the corresponding
duties to be feasible (jurisdiction as practical condition of human rights). Jurisdiction
amounts, therefore, at once to a normative threshold and a practical condition for
human rights.27
Interestingly, the criterion for the ECHR to apply is not territorial at all, but
functional:28 it pertains to the function of jurisdiction. Jurisdiction has territorial,
temporal, and personal dimensions, of course, but those are mere consequences of
jurisdiction. When territorial jurisdiction is mentioned, it should not therefore be
understood to mean that jurisdiction is territorial in nature, but only that territory
is used as shorthand for the function of jurisdiction. The same may be said about
personal jurisdiction by reference to nationality and jurisdiction on nationals only.29
In practice, states parties’ jurisdiction was long exercised mostly within a state’s
territory and mostly on nationals, but things have gradually changed: states parties
now exercise jurisdiction more and more beyond their domestic boundaries and
often exercise jurisdiction at home on non-nationals as well. In short, the territorial,
personal, and temporal scopes of the ECHR have all evolved with the evolution of
jurisdiction itself.
It is important to realize this as the Convention could have had an application
scope restricted to a given territory, to nationals, and to a specific period in time, the
way this is done in certain domestic constitutions.30 Instead, its drafters chose to
refer solely to the normative relationship that unites states parties to their subjects.
We know, for instance, from the travaux préparatoires that the reference to ‘residents’
was intentionally eluded to avoid moving from the nationality restriction to another
one, i.e., to that of residence only and hence to territory.31
This functional approach to jurisdiction is actually testimony to a common
feature in all post-1945 international human rights law: the idea of supplementing domestic human rights law by international human rights that would secure
the minimal right to political membership and hence the right to have (human)
27
28
29
30
31
See, on the second practical dimension of jurisdiction for human rights, L. Wildhaber, Speech given on the
occasion of the opening of the judicial year, Strasbourg, 31 January 2002, (2002) Annual Report of the European
Court of Human Rights 20, at 23–4: ‘We do have to realise that the Convention was never intended to cure all
the planet’s ills and indeed cannot effectively do so . . . When applying the Convention, we must not lose
sight of the practical effect that can be given to those rights.’
This is why, as explained below, the functional approach to jurisdiction is not a third approach besides
personal jurisdiction and territorial jurisdiction, but the correct understanding of jurisdiction of which
personal and territorial jurisdictions are specific instances.
This parallel development between the personal and the territorial scopes of jurisdiction corresponds to
the mutual relationship between citizenship and human rights in a democracy. I will come back to the
democratic dimension of the ECHR and of jurisdiction qua threshold criterion for the application of human
rights later in the article.
See, e.g., Neuman, supra note 12, at 269–70.
See, e.g., Lawson, supra note 16, at 88 ff.
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SA M A N T H A B E S S O N
rights in that political community and guarantee a minimal level of protection of
international human rights in that context.32 This difference in role (and not in content or structure of the rights33 ) between international and domestic human rights
law is most clearly visible in two features of international human rights law: its pressure on internal inclusion in the political community by granting human rights to
non-nationals and also to non-residents, on the one hand, and its pressure on external
inclusion in the political community by granting human rights to non-nationals
and to non-residents who are situated abroad but are subject to state jurisdiction, on
the other.34
In turn, this fundamental difference in function between international and domestic human rights law explains why some domestic practices on extraterritoriality have been slower to develop than international and European human rights
ones.35 Importantly, however, this difference lies in the specifically international
protection of the right to political membership, and not, as is often alleged, in the
opposition between a political conception of human rights and a universal one.36
Both constitutional and international or European human rights are equally political and universal in the proposed account of human rights. What is universal about
international and European human rights indeed is their guaranteeing the right to
political membership in any given political community that exercises jurisdiction
over the right-holders.
2.2. Jurisdiction qua political and legal authority
From the perspective of political theory, jurisdiction is best understood as de facto
political and legal authority; that is to say, practical political and legal authority that
32
33
34
35
36
See, e.g., S. Besson, ‘Human Rights and Democracy in a Global Context – Decoupling and Recoupling’, (2011)
4(1) Ethics and Global Politics 19, by reference to H. Arendt, ‘The Decline of the Nation-State and the End of the
Rights of Man’, in The Origins of Totalitarianism (1951), 147. For an explicit reference to Arendt’s ‘right to have
rights’ in the extraterritoriality context, see Judge Pinto’s Concurring Opinion in Hirsi, supra note 4.
See, e.g., R. Dworkin, Justice for Hedgehogs (2011), 327 ff.; Besson, supra note 32.
See, e.g., Gardbaum, supra note 8, at 764–5; Besson, supra note 32. On the productive tension between
international human rights and domestic citizens’ rights, see also J. Habermas, Zur Verfassung Europas; Ein
Essay, (2011), at 31–2 and 36–8; S. Benhabib, Dignity in Adversity; Human Rights in Troubled Times, (2011), at 16
and 126.
Compare the US Supreme Court’s decisions in Boumediene (supra note 22) or Sale (supra note 22) with the
ECtHR’s decisions in Al-Skeini or Hirsi. US case law lags behind that of the ECtHR in two respects: it still
focuses on nationality instead of residence when recognizing constitutional rights within US borders, and
it has only recently abandoned the test of territorial jurisdiction for functional jurisdiction outside US
borders, even though it seems to want to limit its consequences by restricting it to nationals abroad only
(see Attorney General Eric Horder’s speech available online at www.justice.gov/iso/opa/ag/speeches/2012/agspeech-1203051.html). More generally, this is also why it is artificial to compare both courts’ practice on
the issue of extraterritoriality (e.g., Cleveland, supra note 10): here, it is not only the international versus
domestic nature of the courts that lies in the way of the comparison, but the differences in the function of the
international versus domestic human rights regimes they are applying. Of course, the difference between
the two bodies of human rights law is greater if one compares the US Supreme Court with the ECtHR than
it would be if we compared the Court with other domestic constitutional courts, especially from within
the Council of Europe, due to the greater intermingling between international and domestic human rights
sources in Europe.
Cf. Milanovic, supra note 6, at 76–83; Lawson, supra note 6, at 75–6. This is also why the opposition between,
on the one hand, so-called ‘political’ or ‘social compact’ approaches to jurisdiction and, on the other, so-called
‘universal’ ones is actually flawed.
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is not yet legitimate or justified, but claims to be or, at least, is held to be legitimate
by its subjects.37
Qua de facto authority, jurisdiction consists in effective, overall and normative
power or control (whether it is prescriptive, executive, or adjudicative). It amounts to
more than the mere exercise of coercion or power as a result: it also includes a normative dimension by reference to the imposition of reasons for action on its subjects
and the corresponding appeal for compliance (e.g., through giving instructions).38
This is what distinguishes legal and political authority from other forms of authority.
In the case of state jurisdiction,39 what is at stake is de facto political and legal
authority in a broad sense: any appeals for compliance by an institutional act or
omission may be regarded as legal acts and omissions. This does not mean, of course,
that those acts or omissions are necessarily lawful, but only that they stem from a
necessarily lawfully organized institutional and constitutional framework, whether
those institutions then act ultra vires or not. What matters indeed is that state agents
exercise some kind of normative power with a claim to legitimacy, even if that
claim ends up not being justified. Nor, conversely, does it mean that all state agents
necessarily exercise jurisdiction: some are merely using coercion and their acts lack
the required normative dimension. This distinction is particularly important in the
case of the military, for instance, as not all military operations may be understood
as the exercise of jurisdiction for lack of the normative element.
Including legal and political subjects into the scope of human rights-holders is
one of the ways of legitimizing the exercise of normative power and of justifying the
claim to legitimate authority that goes with the exercise of de facto authority and
jurisdiction over them. Qua democratic states or, at least, democratizing states, ECHR
states parties are not allowed to exercise their political and legal authority in ways
that do not contribute to justifying the claim to legitimate authority that goes with
the exercise of de facto authority. State jurisdiction works, therefore, as a normative
trigger for the recognition of human rights and duties. At the same time, however,
it provides the practical circumstances for them to be feasible rights and duties in
practice: de facto legal and political authority amounts indeed to the institutional
framework necessary to enact and protect human rights, and to identify and allocate
the corresponding duties in practice.40
37
38
39
40
See J. Raz, Ethics in the Public Domain; Essays in the Morality of Law and Politics (1995), at 215. Importantly, the
reference to de facto authority here is not meant to be contrasted with de jure authority, but with justified
or legitimate authority. It should not therefore be confused with the distinction that is made sometimes
between de facto and de jure control in the ECtHR’s case law (e.g., Hirsi, supra note 4, at 80–1). The latter
distinction opposes the regular or lawful exercise of jurisdiction to the ultra vires exercise of jurisdiction, as
explained below.
See Raz, supra note 37, at 212.
There is nothing in the notion of jurisdiction that prevents it from applying to other forms of non-state
political authority, such as the European Union’s, for instance, or other international organizations’. However,
since, with the exception of the International Convention on the Rights of Persons with Disabilities, existing
international human rights treaties currently only have states as parties, as is the case of the ECHR, I will
restrict myself to states’ jurisdiction in this article.
Note that the implied prima facie circularity of the statement that jurisdiction is both a practical condition
of human rights and one that is normatively required may be placated by reference to individuals’ collective
natural duty of justice to create institutions that can protect human rights (see, e.g., Universal Declaration
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Of course, one may question this very link between human rights and political
membership in the ECHR and reject the proposed understanding of both jurisdiction and human rights qua political relationship between the state party and its
subjects. Various arguments may be put forward, however, in support of the political
understanding of human rights, both in general and within the ECHR system.
To start with, human rights are normative relationships between a right-holder
and a duty-bearer. But unlike other moral rights, they are systematic rights of all
against all, and egalitarian ones at that, to the extent that all human rights subjects
have the same rights against all and those rights are constitutive of equal moral
status. Those features in turn explain human rights’ institutional nature and the
fact that they require institutions to pool and mediate the duties equally, but also
to identify, specify, and allocate them, and why only institutions can and should
be human rights duty-bearers.41 Another argument for the proposed political and
institutional conception of human rights that stems from within the ECHR lies
in the democratic underpinnings of all ECHR rights: democracy belongs to the
interpretative values of the Convention.42 It is, moreover, the only process through
which Convention rights may be restricted in a justified way (e.g., the reference to the
‘necessity in a democratic society’ in Article 8(2) ECHR). This is not surprising given
that human rights are constitutive of equal moral status, a status that is necessarily
relational and which, in circumstances of equal and interdependent stakes between
those subjected to law-making, calls for a democratic regime.
Importantly, one should note that the proposed understanding of jurisdiction
corresponds to the one that applies both domestically and extraterritorially. The
Convention has one single threshold criterion whether it applies territorially or
extraterritorially. This is actually how one should understand statements of the
European Court in Issa, but also in Banković or Al-Skeini that draw analogies from
the circumstances that apply in a state party’s territory to those that apply outside
its territory.43 There are no reasons, in other words, why the notion of jurisdiction
should be conceived differently depending on whether it applies inside or outside
the territory of a state party. On the contrary, evidence from Article 1 ECHR and the
Court’s case law points to a single threshold in both sets of circumstances.
2.3. Jurisdiction and other related notions
State jurisdiction for the purpose of the ECHR ought to be carefully delineated from
other understandings of jurisdiction, but also from other connected notions like
attribution and capability. Those distinctions are important when considering how
41
42
43
of Human Rights, Art. 28). On this question, see, e.g., A. Buchanan, Justice, Legitimacy and Self-Determination;
Moral Foundations of International Law (2004), at 85–97.
See Besson, supra note 32; Shue, supra note 7; Nickel, supra note 7; Beitz, supra note 7.
See Besson, supra note 32; P. Gérard, L’esprit des droits; Philosophie des droits de l’homme (2007), at 202–8. See
also, more generally, A. Moravcsik, ‘The origins of human rights regimes’, (2000) 54 Int. Org. 217.
See Issa v. Turkey, Judgment of 16 November 2004, [2004] ECHR (Appl. No. 31821/96), para. 71: ‘article 1 of the
Convention cannot be interpreted so as to allow a State Party to perpetrate violations of the Convention on
the territory of another State, which it could not perpetrate on its own territory.’ See also, more specifically,
Al-Skeini, supra note 2, para. 149: ‘the exercise of some of the public powers normally to be exercised by a
sovereign government.’
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to assess state jurisdiction in proceedings before the European Court and in the
Court’s decisions: among the admissibility requirements or the merits, and, among
either of those, at what stage in the procedure exactly.44
First of all, state jurisdiction is not about judicial jurisdiction. It is not about the
ECtHR’s ratione personae or ratione loci jurisdiction.45 Nor is it about domestic courts’
jurisdiction qua way of exercising state jurisdiction.46
Of course, state and judicial jurisdiction are related:47 the ECtHR’s jurisdiction
is a consequence of state jurisdiction,48 on the one hand, and domestic courts’
jurisdiction is a case of exercise of state jurisdiction,49 on the other. However, they
need to be clearly delineated as distinct steps in the reasoning to avoid many of the
conflations one observes in practice. This is particularly important when discussing
issues of comity towards the executive or the question of the margin of appreciation,
as those pertain only to judicial jurisdiction over extraterritorial matters and not
directly to state jurisdiction itself.
Second, state jurisdiction is not about attribution in the context of the determination of responsibility. Attribution of certain acts to a public institution and
state agents, and, more generally, responsibility, only come later once the state’s
duties have arisen in the first place and have been violated.50 Without jurisdiction,
there are no human rights applicable and hence no duties, and there can be no acts
or omissions that would violate those duties that can be attributed to a state and a
fortiori no potential responsibility of the state for violating those duties later on.
Of course, the practice refers to ‘effective control’ as one of the criteria of attribution of the acts of individual agents to states parties.51 This conceptual resemblance
is actually a source of confusion that explains why attribution and jurisdiction are
often conflated. True, often in order to assess jurisdiction, the link between the acts or
omissions at stake and state agents needs to be assessed at once and at the same time,
hence the difficulty in keeping them apart. This would be the case, for instance, in
the context of assessing whether there is state jurisdiction when de facto organs act
or when the acts of state agents need to be delineated from those of an international
organization they work for: in those circumstances, attribution to the state is also a
44
45
46
47
48
49
50
51
See Milanovic, supra note 6, at 18–19.
See, e.g., the 2011 Admissibility Guide released by the ECtHR (www.echr.coe.int/ECHR/EN/Header/CaseLaw/Case-law±analysis/Admissibility±guide) which discusses extraterritorial jurisdiction under the Court’s
competence ratione personae et loci. Note that in Al-Skeini, supra note 2, the Court decided to postpone the
discussion of jurisdiction from the admissibility section to the merits.
See, e.g., Markovic v. Italy, Judgment of 14 December 2006, [2006] ECHR (Rep. 2006-XIV), para. 54.
For instance, in Boumediene, supra note 22, the US Supreme Court’s jurisdiction pertained to the Court’s
jurisdiction on habeas corpus and not only to US state jurisdiction in Guantánamo, or only in a limited way
to the extent that de facto sovereignty on Guantánamo was accepted: see T. Endicott, ‘Habeas Corpus and
Guantánamo Bay: A View from Abroad’, (2010) 55 American Journal of Jurisprudence 1, at 36–9.
See, e.g., the 2011 Admissibility Guide, supra note 45.
See, e.g., Markovic, supra note 46, para. 54 (even when the facts of the case pending before domestic courts
have taken place extraterritorially and there is no (extraterritorial) state jurisdiction on those facts; what
matters indeed, when creating (territorial) state jurisdiction in this case, is the domestic courts’ jurisdiction).
See also O’Boyle, supra note 12, at 130 ff.; De Schutter, supra note 19, at 190; Milanovic, supra note 6, at 41–52.
Of course, the term ‘responsibility’ is used here to refer to the secondary duties triggered by the violation of
primary (human rights) duties and not to those primary duties in the first place.
See, e.g., Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America),
Jurisdiction and Admissibility, Judgment of 26 November 1984, [1984] ICJ Rep. 392, at 62 and 65.
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SA M A N T H A B E S S O N
condition of jurisdiction. Some authors therefore regard jurisdiction and attribution
as joint steps in the ex post reconstruction of the legal situation,52 but this should
not obfuscate their conceptual distinctiveness ex ante.
Finally, state jurisdiction is not merely about feasibility or capability. Some authors,
however, regard jurisdiction as the mere capability to respect human rights. For them,
if a human rights violation occurs, there was capability to respect human rights and
hence jurisdiction.53
Of course, the feasibility of duties is part of their concrete requirements (following
the principle ‘ought implies can’) and a condition of their existence. This is also
clear from the ECtHR’s case law on the identification of positive duties and their
allocation to states parties. However, that very question of the concrete feasibility
of duties only arises once jurisdiction has been established and the abstract rights
recognized. There can be no human rights duties without human rights, and the
existence of human rights depends on jurisdiction in the first place. Jurisdiction
cannot therefore be directly equated with the feasibility of human rights duties.
True, the question of jurisdiction arises when assessing the general and abstract
feasibility of human rights (and, accordingly, of duties). As I explained before, jurisdiction is not only a normative precondition for the recognition of human rights,
but also a practical requirement of their feasibility: institutions have to be in place
and exercising effective overall normative power for human rights to be protected.
Then, however, jurisdiction merely becomes one of the elements of the assessment
of the abstract feasibility of human rights.
2.4. Jurisdiction under domestic and international law
By definition, state jurisdiction qua de facto legal and political authority is jurisdiction under domestic law. This should be understood in a broad sense: state institutions
and agents are indeed creatures of domestic law. This does not mean, of course, that
their acts and omissions themselves are lawful, but only that they stem from a necessarily lawfully organized institutional and constitutional framework, whether
state agents act ultra vires or not in practice.
Importantly, what matters for state jurisdiction is domestic-law jurisdiction, therefore, and not jurisdiction in international law. State jurisdiction may indeed not always
be exercised lawfully from the perspective of international law. It may, of course, but
it need not be. It suffices here to contrast the intervention of a state into the territory
of another state by state consent against military occupation without state consent:
while both may trigger human rights protection when there is state jurisdiction
according to that state’s law, the latter is clearly unlawful from an international-law
perspective.
Domestic law’s and international law’s jurisdiction are not coextensive, therefore,
but the former includes the latter.54 Indeed, jurisdiction under international law is
52
53
54
See, e.g., Cleveland, supra note 10, at 233–4; De Schutter, supra note 19, at 244–5.
See, e.g., Al-Skeini, supra note 2, Concurring Opinion of Judge Bonello, paras. 11–12.
This is actually the case for many concepts in international law (e.g., nationality) that are internationally
framed through some criteria (e.g., effectiveness in the case of nationality) but refer to a state-related and
domestic-law reality only and one that, as a result, varies from state to state.
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the competence of each state to prescribe, enforce, and adjudicate, primarily on
its territory, but also in exceptional cases outside the latter: e.g., on aircraft and
ships, by embassies and consulates or by invitation to do so.55 International law on
jurisdiction is not therefore about defining state jurisdiction in the first place, but
depends on its existence and regulates some of its transnational and international
implications. It protects a division of labour between territorial states and their
respective jurisdiction, on the one hand, and organizes their coexistence when their
jurisdiction exceptionally overlaps in extraterritorial circumstances by authorizing
it in certain cases, on the other. The function of jurisdiction under international law
is very different from that of jurisdiction qua threshold criterion for the applicability
of international human rights law, as a result.
This distinction between the international lawfulness of state jurisdiction and
the existence of state jurisdiction based on domestic law actually confirms how
jurisdiction differs from sovereignty: the former corresponds to the internationallaw title and right to exercise domestic jurisdiction. This in turn explains why state
jurisdiction is not always exclusive; it claims to be exclusive and actually is when
it is justified, but it need not be as a matter of fact. And this is why two states may
exercise jurisdiction at the same time.56
What this means in the ECHR context is that neither the critiques of the ECtHR’s
decision in Banković57 nor the Banković decision itself58 were right in the end: the
state jurisdiction at stake in Article 1 ECHR is clearly a matter of law, but it is a matter
of domestic law and not of international law, hence the confusion in the literature
between state jurisdiction being a matter of law and it being a matter of international
law.59 This confusion is reinforced by the opposition in the case law of the Court
between de jure control (by reference to international law only) and de facto control,
and, as to the former, by reference to the lawfulness of the act or omission only.60 Of
course, when domestic-law jurisdiction is exercised outside domestic boundaries, it
may sometimes overlap with jurisdiction under international law, albeit not necessarily. Domestic- and international-law jurisdiction are not completely distinct, and
55
56
57
58
59
60
On state jurisdiction under international law, see V. Lowe, ‘Jurisdiction’, in M. Evans (ed.), International Law
(2006), 335; I. Brownlie, Principles of Public International Law (2008), 299.
See Ilascu v. Moldavia and Russia, Judgment of 8 July 2004, [2004] ECHR (Rep. 2004-VII). See also De Schutter, supra note 19, at 228. If international organizations acquire human rights duties under international
human rights treaties and are submitted to the jurisdiction threshold as a result, the same issues may arise
between the organization and the state. See for an instance of the latter: H. Aust, ‘Pirateriebekämpfung im
Lichte von Grundgesetz und Völkerrecht auf dem verwaltungsgerichtlichen Prüfstand’, (2012) Deutsches
Verwaltungsblatt 484.
See, e.g., for this critique: Milanovic, supra note 6, at 21–34, especially at 27; Cleveland, supra note 10, at 233;
De Schutter, supra note 19, at 195 ff.
Banković, supra note 5, paras. 59–61.
See Milanovic, supra note 6, at 8: ‘Jurisdiction is the actual exercise of control and authority by a state,
while title and sovereignty establish the state’s right in international law to exercise such authority within
a specific territory.’ See also Milanovic, supra note 6, at 53 and 61, however, who, because he does not want to
conflate international-law jurisdiction with jurisdiction for the purposes of human rights, actually misses
the domestic-law notion of state jurisdiction and artificially distinguishes jurisdiction qua effective power
only (without normative dimension) and title to exercise jurisdiction.
See Hirsi, supra note 4, para. 80–81. The Court’s reference to de facto control ought not be conflated with de
facto authority, as explained supra note 37.
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the Court in Banković was right on this count, but nor are they entirely coextensive.61
They necessarily overlap to the extent that domestic law’s state jurisdiction is the
object of jurisdiction under international law. The former includes the latter, but
also cases of unlawful exercise of state jurisdiction under international law.
Interestingly, from the perspective of human rights, the sole difference between
those cases of lawful and unlawful jurisdiction under international law is one of
authorization. The internationally lawful nature of a given exercise of domesticlaw jurisdiction therefore provides a confirmation of its existence by enhancing its
authority and adding a new layer of legitimacy; this explains why the categories of
extraterritorial jurisdiction under international law constitute ready cases of state
jurisdiction that can be taken up by the European Court’s case law. It also explains, as
I will argue below, why, in cases of internationally lawful jurisdiction, a presumption
of jurisdiction and other facilitated evidence mechanisms are used in the case law,
and not in the other cases. Time has come, therefore, to turn to the assessment of the
existence of jurisdiction in practice.
3. T HE ASSESSMENT OF JURISDICTION
When assessing jurisdiction, it is essential to distinguish between the constitutive
elements of jurisdiction (subsection 3.1) and the types of jurisdiction and the criteria
used for assessing their existence in practice (subsection 3.2).
Failure to see the difference between the two and how they are combined in the
ECtHR’s case law explains a lot of the current misunderstandings of that case law and
the unjustified criticism it is facing.62 Of course, some of those misunderstandings
have been encouraged by the Court’s own inability to always disentangle the three
elements of jurisdiction qua effective, overall, and normative control, on the one
hand, from the ways in which that control is exercised, i.e., territorially and indirectly
or personally and directly, on the other.
And this is made even more difficult as the evidence requirements vary depending
on whether jurisdiction is territorial and lawful; extraterritorial, general, and lawful; extraterritorial, personal, and lawful; extraterritorial, general, and unlawful; or
extraterritorial, personal, and unlawful. The question of the evidence of jurisdiction
will be addressed in my third point in this section (subsection 3.3). The combination
of the elements, types and evidence of control and hence of jurisdiction may be
visualized in Table 1.
61
62
Interestingly, the ECtHR’s case law does not approach the concept of jurisdiction as an autonomous ECHR
concept like ‘proportionality’ or ‘degrading treatment’. There are many explanations for this. One of them
is that the Convention is a human rights treaty whose applicability does not depend on reciprocity, unlike
other international treaties. Another explanation is that the uniform application of the Convention is only
a concern once it is applicable and once the threshold criterion has been reached.
See, e.g., Milanovic, supra note 6, and M. Milanovic, ‘Reply to Shany, Lowe and Papanicopolu – Review
of Milanovic, M., Extraterritorial Application of Human Rights Treaties’, in EJIL-talk, 5 December 2011,
available at www.ejiltalk.org/reply-to-shany-lowe-and-papanicolopulu; Milanovic, supra note 13. Among
those critiques, one may mention the critique that the Court is confusing its criteria when it examines the
existence of normative power after establishing personal effective control in Al-Skeini, whereas the Court
has identified constitutive elements of jurisdiction whose existence it tests by reference to different criteria.
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TABLE 1. The ECtHR’s case law on jurisdiction
Control
Elements of control
Effective
Overall
Normative
On domestic territory
Presumption
Presumption
Presumption
On foreign territory by
invitation of the sovereign
state
Facilitated evidence by
extension?
Banković
Al-Skeini
Facilitated evidence
by extension?
Loizidou
Facilitated evidence
by extension?
Banković
Internationally
unlawful
On foreign territory by
unlawful occupation
General evidence
Banković
Al-Skeini
General evidence
Loizidou
General evidence
Banković
Internationally
lawful
Through diplomats and
consuls
Facilitated evidence by
extension?
Banković
Al-Skeini
Facilitated evidence
by extension?
Facilitated evidence
by extension?
Through other state agents,
including the military, by
invitation
Facilitated evidence by
extension?
Banković
Al-Skeini
Facilitated evidence
by extension?
Facilitated evidence
by extension?
Al-Skeini
Through other state agents,
including the military, in
official ships, aircraft or
buildings
Facilitated evidence by
extension?
Banković
Al-Skeini
Facilitated evidence
by extension?
Facilitated evidence
by extension?
Through state agents,
including the military
Personal evidence
Banković
Al-Skeini
Personal evidence
Personal evidence
Al-Skeini
Through state agents,
including the military, in
official ships, aircraft or
buildings
Personal evidence
Banković
Al-Skeini
Personal evidence
Personal evidence
Al-Skeini
Types of control
Personal control
(Al-Skeini’s ‘state
agent control and
authority’)
Internationally
lawful
Internationally
unlawful
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Territorial control
(Al-Skeini’s
‘effective control
over an area’)
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3.1. Elements of jurisdiction
Based on the notion of jurisdiction qua de facto political and legal authority introduced and adopted previously, one may identify three constitutive elements of
jurisdiction: (i) effective power, (ii) overall control, and (iii) normative guidance.
In short, to qualify as jurisdiction, state control should be effective, overall, and
normative. First of all, the state’s power should be effective and exercised, and
not merely claimed. Second, it should be exercised over a large number of interdependent stakes, and not one time only and over a single matter only. Interestingly,
the interdependence of stakes is one of the conditions of political membership, and
when those stakes are also equal, a condition of democratic membership.63 Finally,
it should be exercised in a normative fashion so as to give reasons for action, and not
as mere coercion.
Interestingly, all three elements of the proposed understanding of jurisdiction
may also be found in the ECtHR’s case law following Banković. Generally, the reference to ‘authority’ has been omnipresent in the case law about jurisdiction, even
if it is usually juxtaposed to that of ‘control’64 and sometimes wrongly interpreted
by authors as being interchangeable with the latter.65 Importantly, in Al-Skeini, categories of jurisdiction were extensively reorganized and clarified, thus promising a
fresh start in the Court’s case law on extraterritoriality. At the same time, of course,
some of the constitutive elements of the various categories of jurisdiction were also
fused and recombined in that decision.66 In what follows, and for the sake of clarity,
however, I will refer to the regime identified in Al-Skeini as the most elaborate to
date in the Court’s case law and as the relevant one, and will discuss its differences
from previous decisions when necessary.67
To start with, the ECtHR’s case law endorses the first element of ‘effective control’, and this throughout the various phases of the notion’s evolution since Loizidou.
Effective control is usually described as matter of fact that can be assessed as such.68
The second element of control over a broad range of interdependent issues has been
less present in the case law. It was, however, used in Loizidou where the Court referred to ‘effective overall control’ over a foreign territory.69 Curiously, that locution
63
64
65
66
67
68
69
See T. Christiano, ‘Democratic Legitimacy and International Institutions’, in S. Besson and J. Tasioulas (eds.),
The Philosophy of International Law (2010), 119 at 130 ff.
See Al-Skeini, supra note 2, para. 134.
Note, for instance, ETO Principles, Art. 9, supra note 21, which refers to ‘authority or effective control’
(emphasis added).
See M. Schaefer, ‘Al-Skeini and the Elusive Parameters of Extraterritorial Jurisdiction’, (2011) 5 EHRLR 566,
579; Milanovic, supra note 13.
Note that I am leaving aside some minor decisions of the ECtHR (e.g., Issa, supra note 43; Isaak v. Turkey,
Judgment of 24 June 2008, [2008] ECHR (Appl. No. 44587/98); Pad and Others v. Turkey, Judgment of 28 June
2007, [2007] ECHR (Appl. No. 60167/00)) that are generally considered as isolated by the literature (see, e.g.,
Lawson, supra note 6) and that have been (indirectly) disavowed by the Court in Al-Skeini. On precedents and
the interpretive authority of ECtHR’s decisions, see, e.g., S. Besson, ‘The Erga Omnes Effect of Judgments of
the European Court of Human Rights – What’s in a Name?’, in S. Besson (ed.), The European Court of Human
Rights after Protocol 14 (2011), 125.
See Loizidou, supra note 1, para. 62; Al-Skeini, supra note 2, paras. 133 ff. and 138. See also Judge Rozakis’s
Concurring Opinion in Al-Skeini.
See Loizidou, supra note 1, para. 62.
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disappeared from the Court’s formula in Al-Skeini,70 most probably due to the focus
on personal control in the recent case law. One may, however, assume that by excluding instantaneous and singular exercises of power from counting as jurisdiction, an
approach that was not overruled in Al-Skeini, the Banković decision confirmed the
requirement of overall control.71
Finally, the normative-guidance element of authority is also present in the Court’s
case law. One may find it in both Banković and Al-Skeini, albeit under the following
formula: the ‘exercise of some or all of the public powers normally to be exercised
by a sovereign government’.72 While in Banković the normative element was used in
the context of territorial control only,73 it was no longer mentioned in that context
in Al-Skeini, but used by the Court in that case as an additional condition to qualify
state jurisdiction based on personal authority and control (as a departure from Issa,
as a result).74 Of course, it was mentioned not only under the first of the criteria
of personal control in Al-Skeini,75 but also in the discussion of the facts of the case
themselves where it was also applied to the third criterion of personal control.76 This
is even more interesting as this concern for normative guidance in state jurisdiction
was actually articulated by the UK Supreme Court in its Al-Skeini judgment when
considering whether the UK was handling the equivalent to a civil administration
on the ground, albeit leading to a different conclusion than the one the ECtHR
embraced in the end.77
One may safely argue on all those grounds that, besides effective overall control,
normative guidance has become a third constitutive element to be examined by the
Court when assessing whether a given act or omission falls within the jurisdiction
of a state party.78 Regrettably, many authors still refer to jurisdiction merely as the
70
71
72
73
74
75
76
77
78
See Al-Skeini, supra note 2, para. 138.
See Banković, supra note 5, para. 71.
See ibid.: ‘In sum, the case law of the Court demonstrates that its recognition of the exercise of extraterritorial
jurisdiction by a Contracting State is exceptional: it has done so when the respondent State, through the
effective control of the relevant territory and its inhabitants abroad as a consequence of military occupation
or through the consent, invitation or acquiescence of the Government of that territory, exercises all or some
of the public powers normally to be exercised by that Government.’ See also ECtHR, Al-Skeini, supra note 2,
para. 149.
See Banković, supra note 5, para. 71.
Ibid.
See Al-Skeini, supra note 2, para. 135.
See ibid., para. 149: ‘It can be seen, therefore, that following the removal from power of the Ba’ath regime
and until the accession of the Interim Government, the United Kingdom (together with the United States)
assumed in Iraq the exercise of some of the public powers normally to be exercised by a sovereign government.
In particular, the United Kingdom assumed authority and responsibility for the maintenance of security in
South East Iraq. In these exceptional circumstances, the Court considers that the United Kingdom, through
its soldiers engaged in security operations in Basrah during the period in question, exercised authority and
control over individuals killed in the course of such security operations, so as to establish a jurisdictional
link between the deceased and the United Kingdom for the purposes of Article 1 of the Convention.’
See UK Supreme Court, R (Al-Skeini and others) v. Secretary of State for Defence [2007] UKHL 26. Cf. Wilde,
‘Compliance’, supra note 20, at 338, whose only evidence, however, is that the Court did not apply the formal
test of public authority to the facts. But this is only because it did not need to in the absence of the other
constitutive elements of jurisdiction.
See in the same direction, Goodwin-Gill, supra note 20, at 300, 306. Contra: Milanovic, supra note 13, who
sees this combination of the territorial and personal model as a problem. His difficulty, however, is that he
does not see the public-power requirement as one of the three constitutive elements of jurisdiction in all
models, but as an element of the criteria of jurisdiction in the territorial model.
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actual exercise of control,79 thus eluding the normative dimension of authority
in jurisdiction. One ground for this conclusion may be that the criteria developed
by the ECtHR for assessing the existence of jurisdiction have focused mostly on
‘control’, whether of a territorial or personal type.80 True, the elements that qualify
that control, i.e., effectiveness, overall nature, and normativity, and turn it into de
facto legal and political authority and jurisdiction, albeit present in Banković and
again in Al-Skeini, appear less prominently and systematically in the Court’s reasoning. This should not make us forget the other constitutive elements of authority
when defining and using those criteria, however, and in particular its normative
dimension.
Interestingly, the focus on effective overall control only, and the omission of the
normative element of jurisdiction when assessing whether human rights should
apply, is reminiscent of the test used in democratic theory to know to whom domestic democratic decisions should apply and whom it should include beyond those
residing within the polity’s territorial borders. Democratic theorists usually oppose
the ‘all-affected principle’ that focuses on affectedness only, on the one hand, to
the ‘all-subjected principle’81 that also requires actual normative subjectedness and
not only affectedness, on the other.82 Again, therefore, the parallel evolution of human rights and democracy or citizenship, emphasized earlier in the article, may be
observed in this context as well.
3.2. Types of jurisdiction
The existence of state jurisdiction is not easy to assess in practice, and criteria or
shorthands are needed. The criteria for assessing the existence of state jurisdiction or
de facto political and legal authority can vary. They correspond to types of control,
and hence to types of jurisdiction in practice.
Territorial control is one of them, but there are others as well, such as personal control in the ECtHR’s case law and other international human rights practices.83 Those
two types of jurisdiction are also sometimes referred to as ‘models of jurisdiction’ in
the literature.84
First of all, territorial control. The ECtHR’s practice identifies territory or the
‘effective control over an area’ as the main shorthand for jurisdiction: jurisdiction
over territory is indeed an indirect and general form of jurisdiction over people. This
79
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82
83
84
Milanovic, supra note 6, at 8, 27, 32, 34 and 39–41.
See Al-Skeini, supra note 2, paras. 133 ff.; Hirsi, supra note 4, paras. 76–82.
Besides the normative dimension of the ‘all-subjected principle’, one should, of course, not forget the other
two dimensions of effectiveness and interdependence. See Besson, supra note 32.
Cf., e.g., for this critique, S. Näsström, ‘The Challenge of the All-Affected Principle’, (2011) 50(1) PS 116 with
E. Erman, ‘Should All Political Contexts Be Democratic? Contours of a Two-Faced Theory of Legitimacy’, in
E. Erman and S. Näsström (eds.), Political Equality beyond Borders (2012, forthcoming); Besson, supra note 32.
See also the 2011 ETO Principles, supra, note 21, and especially Art. 18: ‘A State in belligerent occupation or
that otherwise exercises effective control over territory outside its national territory must respect, protect and
fulfill the economic, social and cultural rights of persons within that territory. A State exercising effective
control over persons outside its national territory must respect, protect and fulfill economic, social and cultural
rights of those persons’ (emphasis added).
See Milanovic, supra note 6, at 118 ff.; Cleveland, supra note 10, at 229–30; De Schutter, supra note 19, at
203–5.
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is not a surprise given how political and legal authority has always been exercised
and that the territorial state is the primary building block of the international order.
Interestingly, this corresponds to the use that is being made of territory to define the
boundaries of the democratic people as well.
Of course, jurisdiction may be exercised not only on official territory, where
it is presumed by international law, as we will see, but also on foreign territory.
The latter may be lawful, on invitation, for instance, (i) or unlawful as in the case
of occupation without state consent, either by military force or through a local
administration (ii).85
Second, personal control. There are also cases in the ECtHR’s practice where state
jurisdiction is recognized without territorial control and merely by reference to
direct personal control, i.e., the effective overall normative power over people. This
type of jurisdiction is referred to by authors as personal to distinguish it from
territorial jurisdiction.86
To qualify as state jurisdiction abroad, personal control may be lawful or unlawful
from the perspective of international law. Lawful personal control may be exercised
through diplomats and consuls (i);87 through state agents, including the military,
by invitation (ii);88 and through other state agents, including the military, in official
ships, aircraft, or buildings (iii).89 The same applies to unlawful personal control by
those various state agents in various places.
Note that the personal and territorial types of jurisdiction should be seen as
complementary and not as alternatives, however: state jurisdiction is always personal, indeed, even if it is sometimes presumed by reference to territorial control
and hence to indirect or general control over the persons on that territory.90 This
probably explains why the Court refers to personal control as ‘state agent authority
and control’ in Al-Skeini,91 although it is difficult to imagine jurisdiction not being
85
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89
90
91
See Al-Skeini, supra note 2, para. 138: ‘Another exception to the principle that jurisdiction under Article 1
is limited to a State’s own territory occurs when, as a consequence of lawful or unlawful military action,
a Contracting State exercises effective control of an area outside that national territory. The obligation to
secure, in such an area, the rights and freedoms set out in the Convention, derives from the fact of such
control, whether it be exercised directly, through the Contracting State’s own armed forces, or through a
subordinate local administration (Loizidou (preliminary objections), cited above, § 62; Cyprus v. Turkey [GC],
no. 25781/94, § 76, ECHR 2001-IV, Banković, cited above, § 70; Ilaşcu, cited above, §§ 314–16; Loizidou (merits),
cited above, § 52).’
See Milanovic, supra note 6, at 118–20 and 173 ff.
See Al-Skeini, supra note 2, para. 134: ‘First, it is clear that the acts of diplomatic and consular agents, who are
present on foreign territory in accordance with provisions of international law, may amount to an exercise
of jurisdiction when these agents exert authority and control over others.’ (emphasis added).
See ibid., para. 135: ‘Secondly, the Court has recognized the exercise of extraterritorial jurisdiction by a
Contracting State when, through the consent, invitation or acquiescence of the Government of that territory,
it exercises all or some of the public powers normally to be exercised by that Government.’
See ibid., para. 136: ‘In addition, the Court’s case-law demonstrates that, in certain circumstances, the use
of force by a State’s agents operating outside its territory may bring the individual thereby brought under
the control of the State’s authorities into the State’s Article 1 jurisdiction. This principle has been applied
where an individual is taken into the custody of State agents abroad . . . . The Court does not consider that
jurisdiction in the above cases arose solely from the control exercised by the Contracting State over the
buildings, aircraft or ship in which the individuals were held. What is decisive in such cases is the exercise
of physical power and control over the person in question.’
For a similar point, see Judge Rozakis’s Concurring Opinion in Al-Skeini, supra note 2.
See ibid., paras. 133 ff.
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exercised by state agents or, at least, not attributable to state agents. Some authors
have preferred to refer to personal jurisdiction as functional jurisdiction as a result.92
However, this assumes that territorial jurisdiction is not functional, and hence not
about exercising the function of jurisdiction, which is blatantly wrong. Contrary to
what is often assumed and as I explained before, there is no such thing as ‘territorial
jurisdiction’ strictly speaking; it is merely personal control exercised through overall
effective control over a given territory, whether on the state’s official territory or outside that official territory. Jurisdiction is a function that is exercised either through
direct personal control, or through territorial control, and personal and territorial
jurisdiction are merely types of jurisdiction as a result.
Importantly, it is more difficult to provide evidence of personal control than of
territorial control. I will discuss this below. For the time being, it suffices to say that
the existence of all three constitutive elements of jurisdiction should be assessed in
each case, and not merely effective control or power whether territorial or personal.
Indeed, military occupation with effective control over a territory need not imply
jurisdiction, because it lacks, for instance, the normative element of reason-giving
and appeal for compliance.93 Another example may be effective personal control by
troops without, however, any normative appeal besides the use of coercion. Potential
confusions about this arise from the interchangeable use of territorial or personal
‘control’ and ‘jurisdiction’ in the descriptions of the model by authors and even by
the Court itself, whereas jurisdiction is always personal, and what changes is the
criterion for assessing the way it is exercised and hence the type of control and not
the elements qualifying that control.
3.3. Evidence of jurisdiction
In order to understand how the existence of state jurisdiction is to be established in a
procedure before the European Court, one may distinguish between the presumption
of jurisdiction, first, and its general or individual establishment when it is not
presumed, second.
First of all, the presumption of jurisdiction. Jurisdiction is presumed over people situated on the official territory of the state party.94 This presumption stems from international law and the international division of labour between territorial states that
entrenches their domestic-law jurisdiction on that territory. Importantly, however,
this presumption has to be rebuttable (with respect to either element of jurisdiction),
especially if another state exercises full jurisdiction on the state’s territory:95 this is
the consequence of jurisdiction being essentially personal and only being territorial
by shorthand for personal control.96
92
93
94
95
96
See in the US, by reference to Boumediene, supra note 22; Neuman, supra note 12, at 261 ff.; Cleveland, supra
note 10, at 230. See also in the ECHR context, Al-Skeini, supra note 2, Concurring Opinion of Judge Bonello,
paras. 11–12; Schaefer, supra note 66, at 581.
See Al-Skeini, supra note 2, para. 149 a contrario. See also Schaefer, supra note 66, at 579.
See Al-Skeini, supra note 2, para. 131: ‘Jurisdiction is presumed to be exercised normally throughout the State’s
territory’ (emphasis added).
Ibid.
See also Judge Bratza’s Dissenting Opinion in Ilascu, supra note 56.
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An interesting question is whether this presumption should be extended to
occupied territories, whether they are lawfully occupied by invitation of the territorial state or unlawfully occupied. If jurisdiction under international law is about
co-ordinating and hence facilitating international relations when jurisdiction is
exercised beyond borders, it would seem that lawful occupation could well also
trigger a presumption of jurisdiction or, at least, some form of facilitated evidence
mechanism.97 International law recognizes a specific exercise of extraterritorial
jurisdiction as lawful, and hence contributes to its normative claim to legitimate
authority and accordingly to the corresponding expectation that this will trigger
human rights protection in return. The main counterargument here would pertain
to the right to self-determination of the population whose territory is occupied.
It is important, therefore, to make sure that that right can be exercised and that
the presumption of jurisdiction, if it is recognized, ceases as soon as that right is
exercised.98
Second, the establishment of jurisdiction in cases where it is not presumed. Outside
the domestic territory and outside the cases of lawful territorial control beyond the
state’s borders, jurisdiction has to be established in each concrete case by reference
to its circumstances.99
Jurisdiction can be established either generally, as in the context of unlawful
territorial control, or individually, as in the cases of lawful and unlawful personal
control. Because territorial control is about indirect personal control, however, it may
simply be established generally and will extend automatically to all individuals on
the territory. By contrast, personal control has to be established individually in each
case. Here again, one may wonder whether lawful personal control may not also
qualify for a presumption or at least for a regime of facilitated evidence, by extension
of the argument made earlier about lawful territorial control and by analogy to the
presumption of jurisdiction applicable within the territorial boundaries of a state
party.
The distinction between territorial presumption and personal evidence has
been interpreted by some authors as a distinction between norms and facts.100
There seem to be traces of this facts-only approach to jurisdiction in the ECtHR’s
case law in Al-Skeini.101 It is important not to forget, however, that while the exercise
of effective, overall, and normative power in practice is a matter of fact that can be
97 See also Judge Bonello’s Concurring Opinion in Al-Skeini, supra note 2, paras. 24–28; De Schutter, supra note
19, at 205.
98 By analogy to international occupation law: see M. Sassoli, ‘Legislation and Maintenance of Public Order and
Civil Life by Occupying Powers’, (2005) 16 EJIL 661, at 676–8 and 693–4.
99 See Al-Skeini, supra note 2, para. 132: ‘In each case, the question whether exceptional circumstances exist
which require and justify a finding by the Court that the State was exercising jurisdiction extraterritorially
must be determined with reference to the particular facts’ (emphasis added). See also para. 137: ‘It is a question
of fact whether a Contracting State exercises effective control over an area outside its own territory. In
determining whether effective control exists, the Court will primarily have reference to the strength of the
State’s military presence in the area (see Loizidou (merits), cited above, §§ 16 and 56; Ilaşcu, cited above, §
387). Other indicators may also be relevant, such as the extent to which its military, economic and political
support for the local subordinate administration provides it with influence and control over the region (see
Ilaşcu, cited above, §§ 388–94).’
100 See, e.g., Tomuschat’s Concurring Opinion in Lopez Burgos, supra note 14; De Schutter, supra note 19, at 244–5.
101 See Al-Skeini, supra note 2, paras. 131 and 137.
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demonstrated or not, jurisdiction itself ought to retain its normative dimension of
appealing to compliance and should not be reduced, for procedural reasons, to mere
effective control or coercion.
4. T HE NORMATIVE CONSEQUENCES OF JURISDICTION
Jurisdiction is an all-or-nothing matter and not a matter of degree: either one is giving
reasons for action and requiring compliance, or one is not. It cannot therefore be
split into levels and acquired gradually. It comes close to other normative concepts
that are also threshold concepts, such as sovereignty or legitimacy.
Once jurisdiction has been established concretely, the question of the scope of
the rights (subsection 4.1) and duties (subsection 4.2) arises. There are two questions
in particular that need to be broached: the question of the rights applicable and the
question of the type of duties triggered. Note that the variations between the rights
and duties applicable in and outside a state’s territory should not be conflated with
the idea of the gradual jurisdiction of the state: the latter is either given or it is not.102
4.1. The ECHR rights applicable
The right answer to the question of which ECHR rights are applicable extraterritorially, which was given by the ECtHR in Al-Skeini and allegedly as a reversal of the
Banković decision, is that all the rights and duties applicable in the circumstances
of the case may arise.103 This is a consequence of the indivisibility of ECHR rights
in terms of justification, but also of realization.104 This means that there are no
differences between ECHR rights applicable inside and outside a state’s territory,
provided it has jurisdiction.
Of course, the specific content of the specific rights and their corresponding
duties may differ from those that apply domestically inside the state’s territorial
boundaries, due to the circumstances of the case.105 This is because, depending
on the concrete threats, not all human rights will need protection in the concrete
circumstances.106 This is also because duties always have to be specified in context,
by reference to the concrete threats to the protected interest.
This distinction between the same abstract rights but different concrete duties
is why authors are often misled in thinking that the rights applicable in extraterritorial circumstances differ in scope from those applicable in domestic ones.
102 Cf. De Schutter, supra note 19, at 217; Lawson, supra note 16, at 120, and Lawson, supra note 6, at 72 ff, who
conflates both things and sees jurisdiction as a matter of degree.
103 See, e.g., Al-Skeini, supra note 2, para. 137.
104 See, e.g., J. Nickel, ‘Rethinking Indivisibility: Towards a Theory of Supporting Relations between Human
Rights’, (2008) 30 HRQ 984; P. Gilabert, ‘The Importance of Linkage Arguments for the Theory and Practice
of Human Rights: A Response to James Nickel’, (2010) 32 HRQ 425; J. Nickel, ‘Indivisibility and Linkage
Arguments: A Reply to Gilabert’, (2010) 32 HRQ 439.
105 See Wilde, ‘Compliance’, supra note 20, at 337.
106 See by analogy withinthe boundariesof astate’sterritory:Markovic, supra note 46, para. 53 (onthe applicability
of Art. 6 ECHR given that state jurisdiction is triggered by judicial proceedings).
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It is also probably why the ECtHR insisted in Al-Skeini on reversing the idea developed in Banković according to which ECHR rights could not be ‘tailored and
divided’.107 Again, however, it is not the ECHR rights that are tailored and divided:
they are the same. But it is the specific duties that are bound to be different in the specific circumstances, and this whether we are talking of territorial or extraterritorial
applicability.
4.2. The ECHR duties applicable
Negative and positive duties alike may arise from ECHR rights applicable abroad
and at the same time. They are indeed necessary complements to each other: negative duties cannot be respected without positive duties to protect and to aid,
and vice versa.108 And this has actually been confirmed in the ECtHR’s case law
itself.109
Of course, effective overall control will be necessary for positive duties to arise in
the first place,110 but it will have to be assessed in the concrete circumstances. It is not
something that can be excluded abstractly from the cases of extraterritorial jurisdiction, whether jurisdiction is exercised by territorial or personal control. This is why
proposals that treat negative and positive duties differently in an abstract fashion
cannot hold.111 The reasons for authors to put forward such proposals, however,
may stem from the conflation between the specific-effective control requirement of
positive duties and the more general jurisdiction requirement for the applicability
of the ECHR itself.112
Interesting difficulties arise in the context of ECHR positive duties abroad, especially in relation to the shared jurisdiction over those territories or people in
practice.113 In such cases, the fact that jurisdiction is shared must influence how
much effective control either of the two states in jurisdiction has in practice over
the persons of the rights-holders, and this even if their jurisdiction is presumed as
that presumption may be rebutted in practice.
107 See, e.g., Al-Skeini, supra note 2, para. 137: ‘It is clear that, whenever the State through its agents exercises
control and authority over an individual, and thus jurisdiction, the State is under an obligation under Article
1 to secure to that individual the rights and freedoms under Section 1 of the Convention that are relevant to
the situation of that individual. In this sense, therefore, the Convention rights can be “divided and tailored” (compare
Banković, cited above, § 75)’ (emphasis added).
108 See Shue, supra note 7.
109 See, e.g., Isaak, supra note 67; Andreou v. Turkey, Judgment of 27 October 2009, [2009] ECHR (Appl. No.
45653/99).
110 See, e.g., Osman v. United Kingdom, Judgment of 28 October 1998, [1998] ECHR (Rep. 1998-VIII), para. 116: ‘For
a positive obligation to arise, it must be established that the authorities knew or ought to have known at the
time of the existence of a real and immediate risk to the life of an identified individual from the criminal acts
of a third party and that they failed to take measures within the scope of their powers which, judged reasonably,
might have been expected to avoid that risk’ (emphasis added).
111 See, e.g., Milanovic, supra note 6, at 209 ff. Cf. Y. Shany, ‘Bad Cases Make Bad Law, but Good Law Books! –
Review of Milanovic, M., Extraterritorial Application of Human Rights Treaties’, in EJIL-talk, 1 December
2011, available at www.ejiltalk.org/bad-cases-make-bad-law-but-good-law-books.
112 For this conflation, see e.g., Lawson, supra note 6, at 74–5.
113 See De Schutter, supra note 19, at 191. See, e.g., the ECtHR Grand Chamber’s pending decision in Catan v.
Moldova and Russia (Appl. No. 43370/04).
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5. R EMAINING CHALLENGES FOR THE EXTRATERRITORIALITY
OF HUMAN RIGHTS
The extraterritorial application of the ECHR, even when it is understood as triggered
by the political notion of jurisdiction and human rights proposed in this article,
still raises a series of very difficult questions for both human rights theory and
human rights practice. Those relate to broader issues of democracy and legitimacy
in international relations, and are to date largely unresolved, whether normatively
or in the existing case law of the European Court.
For reasons of scope, I will only mention them briefly here, by presenting, first,
in each case what the critique is about and, then, how one may go about placating
it. I have chosen to focus on six important problems, but many more may, of course,
be identified: human rights imperialism (subsection 5.1), human rights coherence
(subsection 5.2), human rights pluralism (subsection 5.3), international legal pluralism (subsection 5.4), human right to self-determination (subsection 5.5), erga omnes
effect of the extraterritorial case law (subsection 5.6), and judicial comity and margin of appreciation (subsection 5.7). This section amounts more to a call for further
research than to a complete answer to the complexities we are currently facing.
5.1. Human rights imperialism
The first critique often made of the extraterritoriality of human rights is that it
enables domestic or regional human rights to apply to people who have not accepted
those rights by ratifying the corresponding treaties, or contributed in any way to
their elaboration.114
This is a version of the classical critique of human rights parochialism and ought
to be taken seriously. It cannot indeed simply be evaded by mere gestures at the
universality of human rights:115 that claim needs to be morally justified, indeed, and
cultural and moral pluralism raise well-known problems for that claim.116
In a nutshell, the critique can be defeated in two ways, however. The first one
is to realize that human rights duties are never abstract and always need to be
specified in context. As a result, they are necessarily culture-specific and do not lead
to different moral orderings from the ones that apply locally. The second response
is that for those human rights duties’ minima that are still imposed in a universal
fashion, e.g., on the basis of previous case law of the ECtHR and its interpretive
authority, institutional solutions need to be devised to take all conceptions into
account. Thus, inclusion in the deliberation process over those rights may secure
representativeness and alleviate the parochial bias to a certain extent. There are
problems with the second argument in the extraterritoriality context, however, to
the extent that ECtHR judges do not stem from outside the 47 states parties to the
Council of Europe, and that domestic institutions and judges assigning the relevant
ECHR duties do not include members of the population whose rights are at stake.
114 See, e.g., Brown, UK Supreme Court, Al-Skeini, supra note 77, para. 109.
115 See, e.g., Milanovic, supra note 6, at 83–96.
116 See for the best discussion to date, A. Buchanan, ‘Human Rights and the Legitimacy of the International
Order’, (2008) 14 Legal Theory 39.
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More work is required, therefore, on the institutional side of the response to the
human rights’ imperialism critique of extraterritoriality.
The concern was actually taken seriously early on in the ECtHR’s case law on
extraterritoriality. In response, for instance, the decisions in Banković and Loizidou
referred to the idea of espace juridique européen.117 That idea was since abandoned in
Al-Skeini, however, and for good reasons pertaining to coherence with the notion
of jurisdiction.118 The questions relating to human rights’ imperialism outside the
territory and to the decisions’ authority back home, however, have not disappeared
and remain unbroached by the Court.
There is a second reading of the human rights’ imperialism critique, however, and
one that comes closer to a critique of the democratic legitimacy of human rights. It
raises well-known difficulties in international occupation law which I will address
in that context below.
5.2. Human rights coherence
Even if one accepts the necessity to specify human rights duties in context, the
reverse critique could be that this creates double standards: certain human rights
duties would apply at home only, while others abroad, albeit pertaining to the same
human rights.
This is an important critique that targets the egalitarian dimension of human
rights within each state party’s practice. There may be ways of accommodating
the problem, however. One way of doing so may be for domestic judges to reason
about those cases the way they would about territorial cases. The objection then,
however, is whether domestic human rights case law ought to go through a potential
process of levelling down based on the presumably lower standards of human rights
protection applied outside the domestic boundaries due to the more limited threats
and to the more limited institutional means available to fight back those threats.
5.3. Human rights pluralism
Yet another critique pertains to the way of reconciling potential conflicts between
the human rights duties at stake, on the one hand, and domestic and international
human rights duties, on the other.
Here again, the likelihood of those conflicts looks considerably smaller if one
refers to the necessity of specifying the duties in context. However, as I mentioned
before, one may not exclude conflicts between minimal interpretations of those
respective duties by international or regional bodies and domestic courts. This could
be particularly problematic if it is the local interpretation of other human rights
or the same human rights that diverges. One way out would be to favour the most
beneficial or human rights-protective interpretation (on the model of Article 53
ECHR). Again, however, this question is largely indeterminate in the human rights
117 Banković, supra note 5, para. 80; Loizidou, supra note 1, para. 78. See also Milanovic, supra note 6, at 50–1 and
85–93.
118 Al-Skeini, supra note 2, para. 142. See also Milanovic, supra note 13.
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context.119 Another solution would be to privilege the most democratic determination, i.e., usually the local one, based on some kind of human rights subsidiarity
and emulation of an extraterritorial margin-of-appreciation model.120
5.4. International legal pluralism
The next critique pertains to the relationship between international human rights
law and other international law norms and regimes, such as international humanitarian law, international refugee law and international criminal law. Among those,
it is really the former that matters most for the critique given that it also generates
duties for states and potentially conflicting ones.
One should start by saying that the question is not new and has been raised outside the extraterritoriality debate. Furthermore, it only has a limited scope as it arises
in the context of armed conflicts. The common position on the issue is that both
international humanitarian law and international human rights law apply concurrently. Of course, the lex specialis principle that commands considering international
humanitarian law as specific121 does not cut much ice in concrete circumstances of
conflict.
It is important to note in any case that what triggers the application of those
other regimes of international law is not a jurisdiction criterion, or at least not a
domestic state jurisdiction one in the sense described in this article. The criterion
of occupation in international humanitarian law, for instance, is one of mere power
and effective control without any appeal to compliance. The latter may arise later
and hence imply jurisdiction and the application of international human rights law,
but this need not be the case. Regrettably, the ECtHR avoided the question of the
relationship between international humanitarian law’s thresholds of occupation
and the ECHR’s jurisdiction threshold in Al-Skeini, by subsuming the case to the
personal type of jurisdiction and not to the territorial occupation type.122
5.5. Human right to self-determination
This critique is complementary to the human rights imperialism critique. It pertains
to the right to self-determination of the population whose human rights are imported
due to foreign jurisdiction. Such an import does not fit well with the democratic
dimension of human rights according to which one should be the author and
interpreter of one’s own rights and duties.
The problem is well known within international occupation law. It is common
in the context of transformative occupation where the occupying power may and
ought to legislate, at least all the way up to transition and not afterwards, including
119 See C. van de Heyning, ‘No Place like Home: Discretionary Space for the Domestic Protection of Fundamental
Rights’, in P. Popelier, C. van de Heyning, and P. van Nuffel (eds.), Human Rights Protection in the European Legal
Order: Interaction between European Courts and National Courts (2011), 65.
120 See K. Hessler, ‘Resolving Interpretive Conflicts in International Human Rights Law’, (2005) 13 Journal of
Political Philosophy 29.
121 See, e.g., Prosecutor v. Dusko Tadic, Judgment of 15 July 1999, Case No. IT-94–1-A; Legal Consequences of the
Construction of a Wall in the Occupied Palestinian Territory, supra note 21. See also Milanovic, supra note 6, at
229 ff.
122 See Milanovic, supra note 13, s. 2.C.
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in order to protect human rights.123 The difficulty is that while there may be dual
jurisdiction exercised in practice, there cannot be dual democratic legitimacy and
hence a dual source of legitimate human rights. Of course, one should stress that by
analogy to the democratic-boundaries paradox,124 it is unlikely that the boundaries
of human rights will be human rights-proof. One may therefore speak of a paradox
of human rights boundaries when considering the ways in which the right to have
rights is progressively secured following jurisdiction.
5.6. The erga omnes effect of judgments
This critique pertains to the kind of judicial reasoning and precedents that may
arise from the ECtHR’s case law in extraterritorial cases. The problem lies indeed in
the justification of the potential interpretive authority or erga omnes effect of those
precedents for the other 47 states parties’ authorities. The Court’s judgments’ interpretive authority is a contentious enough issue when it pertains to circumstances
within the territorial boundaries of any of the 47 states parties.125
There are ways out of the critique, however. To start with, it is most likely that
the Court’s case law pertaining to extraterritorial circumstances will never reach
the threshold of consensual minimum given its circumstance-specific nature. Of
course, this does not apply to the criteria of control or the notion of jurisdiction
itself developed by the Court, but only to the substance of ECHR duties recognized
in extraterritorial circumstances. At the same time, however, creating a two-speed
system within the ECtHR’s case law may not actually be the best of solution at a
time of deep crisis of the Strasbourg system. It is indeed a matter of credibility of the
system that it develops in a coherent and egalitarian fashion. This raises anew the
question of double standards discussed before.
5.7. Judicial comity and margin of appreciation
This critique pertains to the importance of respecting comity and the separation
of powers, and in particular the power of the executive, when adjudicating on
extraterritorial matters, mostly because the questions are usually military in nature.
This is clearly an important point when discussing extraterritoriality cases before
domestic courts,126 but it looks very different from the perspective of the ECtHR.
What would come closest would be the margin of appreciation of states parties in
matters not yet covered by European consensus and hence by interpretive minima in
the Court’s case law.127 Extraterritorial matters are typically matters on which there
is no European consensus yet, it seems, and it is highly unlikely that we should see
a corpus of precedents arise from the Court’s case law on those issues. The margin
of appreciation is therefore likely to remain solidly in place.
123 See Sassoli, supra note 98, at 676–8 and 693–4, on the limits of human rights legislation by occupying forces.
124 See F. Whelan, ‘Prologue: Democratic Theory and the Boundary Problem’, in R. Pennock and J. Chapman
(eds.), Liberal Democracy, Nomos XXV (1983), 13; Erman, supra note 82.
125 See Besson, supra note 67.
126 See, e.g., Boumediene, supra note 22. See also Neuman, supra note 12, at 274 ff.; Cleveland, supra note 10, at 270
ff.; Endicott, supra note 47, at 36–9; Milanovic, supra note 6, at 61–7 and 98–103.
127 See G. Letsas, A Theory of Interpretation of the European Convention on Human Rights (2008); Besson, supra note
67.
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6. C ONCLUSIONS
My argument in this article has been that we should read the jurisdiction threshold
of applicability of human rights in line with the political and relational nature of
human rights, and, more specifically, to mean de facto legal and political authority. It
amounts, I have argued, to three elements: (i) effective, (ii) overall, and (iii) normative
power and control. This is a good alternative reading of Article 1 ECHR and of the
ECtHR’s recently restated position in Al-Skeini, and is, more generally, in line with
the democratic underpinnings of the ECHR.
Human rights are not the cure to all ills128 and the fact that they are not need not
worry us. Importantly, there are legal alternatives to the ECHR and international
human rights law to protect the fundamental interests of those affected by ECHR
states parties’ acting abroad when those individuals are not subject to those states’
jurisdiction. First of all, one should mention the international humanitarian- and
occupation-law duties of ECHR states parties, but also the international criminal-law
duties of private actors abroad. Second, the states whose territory is concerned have
their own international human rights duties to respect, and the respect of those duties should be monitored and promoted. Finally, and relatedly, all ECHR states parties
have international responsibilities for human rights and hence responsibilities to
help other states abide by their international human rights duties,129 especially
when they intervene in one way or another on their territory and, paradoxically,
usually in the name of helping them become human rights-abiding democracies.
Of course, embracing this proposal requires the courage to endorse the paradox
of human rights boundaries. Human rights duties are institutional and hence necessarily bounded and, when drawing those boundaries, one can never hope for one
state’s institutions to respect the human rights of all. What the extraterritoriality of
human rights debate shows, therefore, is that, in the human rights context just as
in the democratic one, the territorial sovereign state’s model is in crisis. Migration
on the inside and interventions on the outside make the territorial boundaries of
the polity unsatisfactory from the perspective not only of democratic inclusion,
but also now of human rights protection. Before we find a better way of securing
our equal rights and democratic participation, however, we should be wary about
proposals that may lead us to dispose too quickly of the current state-based system,
and at spreading the requirements of state jurisdiction so thin that we endanger our
democratic institutions and our human rights themselves. This would amount not
only to a violation of our own human rights and human rights duties, but also, and
this needs to be understood by those who are too quick to wave vague claims about
the universality of human rights, to a violation of our responsibilities for the human
rights of others.
128 See Wildhaber, supra note 27.
129 See S. Besson, A Legal Theory of Human Rights (2013), manuscript on file with the author, on the difference
between human rights duties and responsibilities for human rights, and on the latter’s relationship to the
responsibility-to-protect doctrine.
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